Myers v Southern Grampians Shire Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2022 02815

CLARE MYERS, CECELIA MYERS, and JOHN MYERS	Applicants
v
SOUTHERN GRAMPIANS SHIRE COUNCIL	First Respondent
and
DUNKELD PROPERTY HOLDINGS PTY LTD	Second Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF JUDGMENT:	16 November 2023
CASE MAY BE CITED AS:	Myers v Southern Grampians Shire Council
MEDIUM NEUTRAL CITATION:	[2023] VSC 658

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PLANNING LAW — Appeal from Victorian Civil and Administrative Tribunal decision — Objectors review to permit decision — Jurisdiction of the Tribunal where limited right of appeal under the enabling enactment — Multiple permit triggers for proposal — ‘Omnibus’ form of permit application made — Process of decision‑making where exempt provisions apply — Relevant considerations under s 84B on application to review where third party exemption applies — Exercise of discretion — Extent to which exempt provisions can be taken into account in an objectors appeal brought pursuant to s 82 of the Planning and Environment Act1987 — Whether assessment of compliance with exempt provision required to be considered in exercise of discretion — Application of integrated decision‑making approach — Harmonisation of individual decisions on permit triggers a matter for the responsible authority in the circumstance — Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (2001) 18 VAR 411 — Sweetvale Pty Ltd and Anor v Victorian Civil and Administrative Tribunal & Ors [2003] VSCA 83 — Boroondara City Council v 1045 Burke Rd Pty Ltd (2015) VR 535 considered.

Planning and Environment Act 1987 ss 4, 6, 51, 60, 63, 72, 84B — Clause 64 Schedule 1.

Whether amendment of plans by Tribunal in excess of jurisdiction — Planning and Environment Act 1987 — Clause 64 Schedule 1.

Victorian Civil and Administrative Tribunal Act 1998 s 148.

Southern Grampians Shire Planning Scheme Clauses 35.03, 42.01, 43.02, 65 and 72.01.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr N Tweedie SC and Mr R Watters	Planning & Property Partners Pty Ltd
For the First Respondent	No appearance
For the Second Respondent	No appearance

HER HONOUR:

Introduction

Victoria has numerous spectacular natural features that people travel far and wide to experience. Amongst these is the Grampians National Park, or Gariwerd by its traditional Indigenous name. This application for leave to appeal the decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’)[1] concerns land located in Dunkeld, a small town located at the southern end of the Grampians. The Grampians National Park comprises several mountain peaks, including Mount Sturgeon and Mount Abrupt, which form part of the physical backdrop to the site the subject of the proceedings and provides the reason for certain planning controls affecting the land in question.[2]
[1]VCAT Application No. P789/2021.
[2]This description is paraphrased from the eloquent opening paragraphs of the Tribunal’s decision which is the decision under review in this appeal.

The second respondent, Dunkeld Property Holdings Pty Ltd (‘Dunkeld Property’), applied for a planning permit proposing to develop the land at 135 Fairburn Street, Dunkeld (‘the land’) for tourist accommodation.[3] The proposal is a modest one, comprising four detached cabins, along with a pool, sauna, and other works to accommodate 10 people in total.
[3]‘Group Accommodation’ in planning use terms.

Permission was sought through an ‘omnibus’ permit application, in which all permissions for use and development were made under one application. Permission for use and development under the Southern Grampians Planning Scheme (‘Planning Scheme’) was required under the Rural Living Zone (RLZ),[4] for works under Schedule 3 to the Environmental Significance Overlay (ESO‑3),[5] and for works under Schedule 6 the Design and Development Overlay (DDO‑6).[6]
[4]Planning Scheme, cl 35.03.
[5]Planning Scheme, cl 42.01.
[6]Planning Scheme, cl 43.02.

The first respondent, Southern Grampians Shire Council (‘Council’), is the responsible authority for the land pursuant to the Planning and Environment Act 1987 (‘Planning Act’). The Council determined to grant a permit for all permissions required for the proposal.

The appellants own or occupy parcels of land within the vicinity of the subject land. They objected to the planning permit for the proposal at the time it was considered for approval by the Council. After the Council determined to grant a permit for the proposal, the appellants sought review of that determination by the Tribunal as objectors under s 82 of the Planning Act.

Question of Standing raised at the hearing

During the course of the Tribunal hearing, the question of whether the appellants had standing in respect of the permission required under the DDO‑6 was raised. The DDO‑6 is a planning scheme provision which, among other things, exempts from operation the usual notice and review rights available to an objector under the Planning Act. Interim orders were made by the presiding member to provide for a legally qualified member to determine the legal questions raised. The presiding member was a qualified town planning member and not an Australian lawyer.[7]
[7]The Tribunal may be constituted by a suitably qualified person not necessarily an Australian Lawyer: Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 14 (‘VCAT Act’). Constitution of the Tribunal in planning enactments: VCAT Act, s 64, sch 1, cl 52.

Amended Plans

Prior to the commencement of the hearing and in accordance with the relevant Tribunal Practice Note, Dunkeld Property sought leave pursuant to clause 64 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) to amend the application plans. There was no objection by any party to the amendment of the plans sought by Dunkeld Property. The application for review proceeded on the basis of the amended plans.[8]
[8]The formal order substituting the amended plans was made on 9 December 2021.

The Hearing before the Tribunal

On 6 December 2021, the Tribunal commenced hearing the application for review which took place over three days. Expert evidence on town planning and urban design was taken from two expert witnesses on behalf of Dunkeld Property. Both witnesses were cross‑examined and submissions were made by all parties.

The legal member provided her legal opinion to the presiding member on 8 June 2022, and on 24 June 2022 the Tribunal made its order and published its reasons (‘Reasons’).[9] The legal opinion was attached as Annexure A to the presiding member’s reasons (‘Legal Opinion’).[10] The Legal Opinion stated that:

(a) the Tribunal did not have jurisdiction to consider the application for review under DDO‑6, having regard to the exemption from notice and objector appeal rights under that provision and s 82(3) of the Planning Act;[11] and

(b) the Tribunal, in considering the proposal overall, must take the grant of the permit under DDO‑6 as a matter that has been established. The weight to be given to the grant of a permit under DDO‑6 in the consideration of the ‘cover‑all’ permit is a matter for the Tribunal.[12]

[9]Myers v Southern Grampians SC (Red Dot) [2022] VCAT 695 (‘Reasons’).

[10]Reasons, Appendix A (‘Legal Opinion’).

[11]Ibid [31]–[44].

[12]Reasons(n 9) [16]; Legal Opinion (n 10) [89].

The Tribunal’s decision varied the decision of the Council and granted a permit subject to conditions.

Questions of Law raised in the Application for Leave

In this appeal, the appellants’ proposed grounds of appeal raise two questions of law, which they say arise from the circumstances and the reasons given by the Tribunal:

(a) If the Tribunal was correct in finding that it did not have jurisdiction to consider whether the permit application the subject of review complied with the DDO‑6, did the Tribunal err in making a decision which had the effect of varying the Council’s decision under the DDO‑6?

(b) Alternatively, whether the Tribunal erred in finding that it was not required or permitted to independently consider whether the application under review complied with the requirements of the DDO‑6 in the Southern Grampians Planning Scheme.

The appellants’ grounds of appeal seek to demonstrate that the Tribunal exceeded its jurisdiction by interfering with the Council’s decision on the DDO‑6 permission, by allowing an amendment to the plans before it and by making changes to the plans in its merits decision. This position was based on an acceptance that the Tribunal did not have jurisdiction to review the DDO‑6 decision of the Council. However the grounds of appeal in respect of the second question of law, argued that in the exercise of discretion to determine the permissions that were properly before the Tribunal, an independent assessment of the proposal’s compliance with DDO‑6 was required as part of the matters the Tribunal was bound to take into account under the Planning Act.

The appellants contend that the jurisdictional issues raised in this appeal are of importance to the approach to be taken at law and in practice by the Tribunal in circumstances where a permit trigger is subject to an exemption from review in a planning scheme. In particular, they submit that the question of the correct approach to the principles of ‘integrated decision-making’ in this context has not been the subject of judicial determination, citing the key authorities for these principles from the decisions of the Court of Appeal in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (‘Sweetvale Appeal’),[13] and Boroondara City Council v 1045 Burke Road (‘1045 Burke Road’),[14] and of Ashley J in Sweetvale Pty Ltd v Victorian Civil and Administrative Tribunal (‘Sweetvale’).[15]
[13][2003] VSCA 83 (‘Sweetvale Appeal’).
[14][2015] 49 VR 535 (‘1045 Burke Road’).
[15][2001] VSC 426 (‘Sweetvale’).

Leave to Appeal

Section 148 of the VCAT Act provides that a party to a proceeding may appeal a question of law arising from an order of the Tribunal to the Trial Division of this Court, with leave of the Court.[16] Such applications for leave to appeal must be made within 28 days of the relevant Tribunal order, and in accordance with the Court’s rules.[17]
[16]VCAT Act (n 7) s 148(1)(b).
[17]VCAT Act (n 7) s 148(2).

In order to grant leave to appeal, s 148(2A) of the VCAT Act provides that I must be satisfied that the appeal has ‘a real prospect of success’. The question of whether leave to appeal should be granted was not explicitly raised at the hearing of the proceeding on 29 August 2023. I subsequently invited the appellants to make submissions on this question.

In their written submissions, the appellants referred to the five propositions identified by the Court of Appeal as relevant to the grant of leave in Myers v Medical Practitioners Board of Victoria,[18] while also noting that ss (2A) to s 148 of the VCAT Act was inserted just over a decade after that authority.
[18](2007) 18 VR 48 (‘Myers v Medical Practitioners Board’).

In light of the above propositions, the appellants submitted that leave to appeal should be granted because:

(a) Their Notice of Appeal identifies two questions of law which form the basis of the appeal before the Court, and there was no suggestion that they were questions of fact.

(b) Both questions of law are relevant to the success of the appeal as they go directly to the legal basis of the orders made by the Tribunal.

(c) They considered there was at the very least a real prospect of success sufficient to warrant the grant of leave on both appeal grounds raised.

(d) The question of how the Tribunal should approach decision-making in circumstances where some controls are exempt, and how these controls may interact with non‑exempt controls, is of considerable public interest noting 1045 Burke Road.

In my view, the key question raised by the appellants above is at [17](d) in relation to 1045 Burke Road and how the Tribunal should approach decision-making in light of the interaction between exempt and non‑exempt controls. I accept their submission that the correct approach to such decision-making has been the subject of controversy and inconsistency of approach by the Tribunal, particularly where an application has been brought by an objector in an omnibus application in circumstances where a planning permission is exempt from objector appeal rights. Whether — and if so, how — multiple permissions are to be considered in an application for review in such circumstances underpins the questions of law raised here.

As the law is unsettled, I am persuaded that the ‘real prospect of success’ test can be satisfied in these circumstances.

It follows that I grant the appellants leave to appeal the decision of the Tribunal.

However, for the reasons explained below I am of the view that the Tribunal was not in error in its approach to the legal analysis, nor its application of that analysis to the decision or decisions on review before it. Further, the orders made by the Tribunal as a consequence must be read as properly reflecting the decision under review, and not that on the application for permit overall.

Summary of conclusions on the appeal

The Tribunal is a creature of statute and only has the jurisdiction conferred on it by way of the relevant enabling enactment and the VCAT Act. By reason of the exemption from review in the DDO‑6, s 82(3) operated to limit the jurisdiction of the Tribunal to the review of the permissions required under the RLZ and the ESO‑3. This proposition was not in dispute.

In taking into account the relevant considerations required by the Planning Act, in particular by s 84B including the effect of clauses 65 and 71.02, considerations relevant to an integrated decision-making approach do not extend the jurisdiction of the Tribunal to allow it to consider afresh the merits of the DDO‑6. That decision of the responsible authority was ‘a given’. However, in exercising its discretion in respect of the permit triggers that were before the Tribunal, the DDO‑6 permission was a relevant consideration. What weight the Tribunal afforded the DDO‑6 permission was a matter for the Tribunal.

Neither an order amending the application plans, nor an order requiring changes to the plans to be endorsed by the responsible authority as part of the merits determination by the Tribunal, has the effect of varying a decision of the responsible authority which was not before the Tribunal (here the DDO‑6 decision of the responsible authority).

In an application where there are multiple permit triggers for a proposal overall, but the permission under review pursuant to the Planning Act and the VCAT Act is limited by operation of the exemptions applying to the review, the ambit of the Tribunal’s review enquiry will be restricted to the non‑exempt provisions. This approach is not inconsistent with integrated decision-making on the proposal overall. The respective decisions of Ashley J in Sweetvale, the Court of Appeal in Sweetvale and in 1045 Burke Road are not inconsistent and can be read together as establishing an approach to the proper consideration of multiple permissions, but recognising the Tribunal’s jurisdictional limitations on review where there are exempt provisions in play.[19]
[19]See also Viva Energy Australia Pty Ltd v City of Gretaer Geelong Council &Anor [2023] VSC 586 per Forbes J citing with approval Brunswick Investment Project v Moreland CC [2021] VCAT 1191 per Quigley J (’Brunswick Investment’).

The observation made by Ashley J in Sweetvale,[20] when addressing the consequences of an application of the exemption of third party rights on the extent of permissible enquiry by the Tribunal on review, remains apposite:

I accept that, in consequence of the view that I take as to the application of the exemptions, the ambit of permissible enquiry on review in a case such as the present would be confined. The Tribunal will be obliged to take certain matters as having been established. But that does not mean remaining planning issues cannot be fully explored. It does not mean in such exploration evidence will not be receivable which is pertinent to such issues because it would also be relevant to a matter which must be taken to be established. Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all planning considerations, that is what, in my opinion, is plainly dictated by the legislation.

[20]Sweetvale (n 15) [71].

The legal opinion of the Tribunal was correct in law in identifying the jurisdictional limitation and determining that the existing DDO‑6 decision of the responsible authority was a relevant consideration, the weight to be ascribed to it being a matter for the Tribunal. The Tribunal made its decision in accordance with these correctly stated legal principles and thus in doing so made no error of law.

Relevant legislative provisions

The Tribunal is a creature of statute, and its jurisdiction is derived entirely from that source.[21] The Tribunal’s review jurisdiction is set out at s 42 of the VCAT Act, where it is defined as follows:
[21]Director of Housing v Sudi (2011) 33 VR 559, 564 [19].

What is review jurisdiction?
(1) Review jurisdiction is jurisdiction conferred on the Tribunal by or under an enabling enactment to review a decision made by a decision‑maker.

…

Section 48 of the VCAT Act provides for how the review jurisdiction of the Tribunal is invoked:

How is review jurisdiction invoked?
The review jurisdiction of the Tribunal is invoked—
(a)by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or
(b) by a decision‑maker referring a decision to the Tribunal under an enabling enactment in accordance with section 69 for review of the decision;
(c) in any other way permitted or provided for by the enabling enactment.

The appellants sought review by the Tribunal of the Council’s decision as third party objectors under s 82 of the Planning Act. Section 82 allows an objector to apply to the Tribunal for review of a decision of a responsible authority (such as a municipal council) to grant a permit, subject to the limitation under subsection (3):

Applications for review where objectors
(1) An objector may apply to the Tribunal for review of a decision of the responsible authority to grant a permit.
(2) A planning scheme may set out classes of applications for permits the decisions on which are exempted from subsection (1).
(3) If a planning scheme exempts a decision of an application for a permit from subsection (1), an application for review cannot be made under that subsection in respect of that decision.

Section 6 of the Planning Act sets out the matters which may be provided for in a planning scheme. Among other things, this includes providing for classes of permit applications from which decisions are exempt from applications for review brought by objectors,[22] as limited by s 82(3).
[22]Planning and Environment Act 1987 (Vic) s 6(kd) (‘Planning Act’). This section also provides for exemptions in planning schemes from the requirements of s 64(1), (2) and (3), which provide for notice requirements and decisions in relation to permit applications where there are objectors.

A further power of the Tribunal allows it to make amendments to an application permit which is under review, pursuant to clause 64 of Schedule 1 to the VCAT Act:

Amendment of application
(1)This clause applies to the following proceedings—
(a)a proceeding for review of a decision under the Planning and Environment Act 1987 of a responsible authority in respect of an application for a permit or the failure of a responsible authority to grant a permit;

…
(2)At any time in a proceeding to which this clause applies the Tribunal may make any amendment it thinks fit to the application for the permit, works approval or licence the subject of the proceeding.
(3)Without limiting the generality of subclause (2), the Tribunal may make an amendment to an application for a permit under the Planning and Environment Act 1987 —
(a)as to a use or development different from the use or development mentioned in the application;
(b)as to the land to the use or development of which the application relates.

(4)This clause is in addition to, and does not limit or affect section 127.

Where an application for review under the Planning Act is before the Tribunal, s 84B provides for the matters the Tribunal must take into account when determining the application:

Matters for Tribunal to take into account
(1) In determining an application for review under this Act, the Tribunal must—
(a) take account of any matter which the person or body in respect of whose decision the application for review is made—
(i) properly took account of in making its decision; or
(ii) was required to take account of in making its decision; and

(b)have regard to any matter which the person or body in respect of whose decision the application for review is made—
(i) properly had regard to in making its decision; or
(ii) is required to have regard to in making its decision.

(2) In determining an application for review under this Act, in addition to the matters referred to in subsection (1), the Tribunal—
(a) must take into account any relevant planning scheme;
(b) must have regard to the objectives of planning in Victoria;

…
(jb) must (where appropriate) have regard to the number of objectors in considering whether the use or development may have a significant social effect;
(k) must take account of any other matter which the Tribunal is required by the provisions of this Act or any other Act to take account of in determining the application for review.

(3)If an application for review is of a class that is exempted by a planning scheme wholly or in part from the requirements of subsection (2)(b) to (jb), the Tribunal is not required to take into account or have regard to the exempted matters in determining the application.

Once the Tribunal’s jurisdiction is invoked, it is conferred the following functions under s 51(1) of the VCAT Act:

Functions of Tribunal on review
(1) In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a) has all the functions of the decision‑maker; and
(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order—
(a) affirm the decision under review; or
(b) vary the decision under review; or
(c) set aside the decision under review and make another decision in substitution for it; or
(d) set aside the decision under review and remit the matter for re‑consideration by the decision‑maker in accordance with any directions or recommendations of the Tribunal.

…
Section 159 Dealing with inconsistences
Subject to section 57K, if a provision of this Act, the regulations or the rules are inconsistent with a provision of an enabling enactment, the provision of the enabling enactment prevails to the extent of the inconsistency.

…

Section 85 of the Planning Act further clarifies the Tribunal’s powers after it hears an application:

Section 85 Determination of applications
(1)After hearing an application for review, the Tribunal may—
(a)direct that a permit must not be granted; or
(b)in the case of an application for review of a refusal or failure to grant or a decision to grant a permit—
(i)grant the permit and direct the responsible authority to issue it; or
(ii)grant the permit, direct that the permit must or must not contain any specified conditions and direct the responsible authority to issue the permit; or

(c)in the case of an application for review of a requirement under section 52(1)(d) or 57B—
(i)confirm the requirement; or
(ii)change the requirement; or

(d)in the case of an application for review of a requirement for more information under section 54—
(i)direct the responsible authority to consider the application for a permit as made under section 47; or
(ii)confirm the requirement; or
(iii)change the requirement; or

(da)direct that the time within which information is to be given under section 54 must be extended for a specified period or must not be extended, in the case of an application for review of the refusal or failure of the responsible authority to extend the time under section 54A; or
(e)direct that a permit must or must not contain any specified condition; or
(f)direct that the time within which a development or use is to be started or the development is completed or within which a plan under the Subdivision Act 1988 is to be certified must be extended for a specified period or must not be extended, in the case of an application for review of the refusal or failure of the responsible authority to extend the time; or
(g)cancel a permit if—
(i)it upholds an application for review of a condition specified in a permit on the ground that the responsible authority had no power to impose the condition; and
(ii)it considers that the permit should not or would not have been granted without the condition.

(1A)If the Tribunal directs the responsible authority to issue a permit under subsection (1)(b) or directs that a permit contain specified conditions under subsection (1)(e), the Tribunal may direct that the permit or a specified part of the permit must not be amended by the responsible authority under Division 1A.
(2)If the Tribunal gives a direction under subsection (1)(d)(i), the prescribed period for the purpose of making an application for review under section 79 begins on the day on which the direction is given.
(3)If the Tribunal gives a direction under subsection (1)(d)(ii) or (1)(d)(iii) in respect of a requirement for more information which was made within the prescribed time under section 54, the Tribunal must determine a new lapse date for the application which must permit a period for compliance that is not less than the period allowed for in the notice of the requirement.

The application before the Tribunal

On 22 December 2020, Dunkeld Property made an application seeking approval for multiple permissions for use and development of the land as ‘Group Accommodation’ pursuant to the Planning Scheme.[23] On 19 February 2021, the appellants lodged a written objection with the Council.
[23]Permit Application TP/127/2020.

The proposal requires permissions under the Planning Scheme under the following provisions:[24]
[24]Additional controls apply but are not relevant for the purposes of the key issue in dispute. These include Environmental Significance Overlay, sch 2, Vegetation Protection Overlay, sch 1 and the Bushfire Management Overlay.

(a) the Rural Living Zone (RLZ), to use land for group accommodation and for development of buildings and works associated with that use;[25]

(b) the Environmental Significance Overlay, schedule 3 (ESO‑3) for buildings and works;[26] and

(c) the Design and Development Overlay, schedule 6 (DDO‑6) for buildings and works.[27]

[25]Planning Scheme, cl 35.03–1,03–4.

[26]Planning Scheme, cl 42.01. Schedule 2 to cl 42 relates to the Protection of Waterways and only applies to the western end of the subject site and not to the permit application area. Schedule 3 applies to Wannon River Escarpment Protection.

[27]Planning Scheme, cl 43.02, sch 6 (Dunkeld Larger Lot Residential Areas) (‘DDO‑6’).

DDO‑6 is intended to ensure that the design of buildings within the overlay are ‘responsive to the visual sensitivity’ of the area, including long range views towards Mount Sturgeon and Mount Abrupt. Clause 2 of the DDO‑6 includes the following exemption from third party notice and appeal rights:

Exemption from notice and appeal
An application to construct a building or construct or carry out works is exempt from the notice requirements of Section 52(1)(a), (b) and (d), the decision requirements of Section 64(1), (2) and (3) and the review rights of Section 82(1) of [the Planning Act].

On 12 April 2021, the Council issued a Notice of Decision to Grant a Permit (‘Notice of Decision’) in respect of the application, purporting to approve the application subject to conditions.[28] Condition 1 of the Council’s Notice provides that:

1.The use/development as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

[28]Southern Grampians Shire Council, ‘Notice of Decision to Grant a Permit – TP/127/2020’ (12 April 2021) (‘Notice of Decision’).

On 5 May 2021, the appellants filed an application with the Tribunal for review of the Council’s decision pursuant to s 82(1) of the Planning Act.[29] The grounds of review claimed they were affected by the Council’s decision in the following terms:[30]
[29]VCAT application P789/2021.
[30]Reasons (n 9) [10].

(a) the proposal fails to comply the RLZ as it fails to appropriately protect the landscape values of the area;

(b) the proposal also fails to comply with the RLZ as it fails to limit the impact on the flora and fauna in the locality;

(c) the proposal fails to comply with the DDO‑6 as it fails to appropriately achieve design objectives and outcomes; and

(d) the proposal fails to comply with the ESO‑3 as it fails to encourage buildings and works that are responsive to the environmental and landscape values of the escarpment.

In the information it was required to provide to the Tribunal under Tribunal Practice Note PNPE2,[31] the Council erroneously indicated that the proposal was not exempt from notice or review rights under the Planning Act.
[31]Letter from the Council to the Tribunal, 20 May 2021.

On 21 October 2021, Dunkeld Property circulated correspondence seeking to amend the permit application under review in accordance with Tribunal Practice Note PNPE9. The correspondence attached proposed amended plans which made a number of changes to the plans’ design and layout, including moving the location of the cabins and lowering the height of three of them to reduce the profile of the built form.[32] There was no objection to the amendment of the plans by any party and the hearing proceeded on the basis of the amended plans.[33]
[32]Harwood Andrews, Statement of Changes to Permit Application No.TP/127/2020, 21 October 2021.
[33]The formal Order of Member Templar in Myers v Southern Grampians Shire Council (Victorian Civil and Administrative Tribunal, P789/2021, 9 December 2021) (‘9 December Order’) was made at the end of the hearing.

On 6 December 2021, the Tribunal commenced hearing the application. The application for review before the Tribunal largely centred around matters of the visual impact of the proposal on the setting of Mount Sturgeon and Mount Abrupt, on Gariwerd more broadly and the surrounding environs, as well as the planning context of the RLZ and ESO‑3.[34]
[34]Reasons (n 10)[8].

Dunkeld Property called expert evidence from Craig Czarny, an urban designer, and John Glossop, a town planner. The evidence of both of these witnesses dealt with the full suite of the planning controls and permit triggers, including making reference to the DDO‑6.[35] These witnesses were cross‑examined on matters relevant to their expertise, including compliance with DDO‑6.[36] During the course of the second day of the hearing, Dunkeld Property raised the question of whether Tribunal had jurisdiction to entertain consideration of the DDO‑6.
[35]See, e.g., John Glossop, Town Planning Evidence Statement (22 November 2021), 12; Craig Czarny, 135 Fairburn Street, Dunkeld – Application for Review P789/2021 (November 2021), 13, 16–17.
[36]Transcript of Proceedings, Myers v Southern Grampians Shire Council (Victorian Civil and Administrative Tribunal, P789/2021, Member Templar, 7 December 2021), 170:4–208:27 (Cross‑examination of Craig Czarny), 251:13–285:24 (Cross‑examination of John Glossop).

On 9 December 2021, the Tribunal made interim orders which included an order amending the plans under review following Dunkeld Property’s request to amend the plans discussed above at [42] (‘amended plans’).

The Tribunal’s Reasons

On 24 June 2022, the presiding member made final orders and delivered the Tribunal’s Reasons.

The Reasons attached the opinion of the legally qualified member of the Tribunal who was requested to provide an opinion on the questions of law identified in the interim orders.

The Tribunal’s orders were set out at the start of the Reasons as follows:

Permit granted
1 In application P789/2021 the decision of the responsible authority is varied.
2 In planning permit application TP/127/2020 a permit is granted and directed to be issued for the land at 135 Fairburn Street, DUNKELD VIC 3294 in accordance with the endorsed plans and the conditions set out in Appendix B. The permit allows:
• Use and development of the land for Group Accommodation and associated works.

The Reasons commenced with a summary of the background to the proceeding and identification of the questions to be answered in the Legal Opinion. At [16] of the Reasons, the member set out a summary of the Legal Opinion in his own words as follows:

(a)the Tribunal has no jurisdiction to consider the application for review against the provisions of DDO6, where it is a section 82 review alone, given the DDO6 includes an exemption from third party notice and appeal rights; and
(b)it is a relevant consideration for the Tribunal to take into account the compliance with the DDO but it is beyond the Tribunal to independently consider whether the application for review complies with DDO6. Further, this opinion also states that it is a matter for the Tribunal as to what weight to give to the decision of the Council in it approving the proposal (by virtue of the Notice of decision to Grant a Planning Permit) inclusive of its approval of the proposal under DDO6.

He then said that he had made his decision in accordance with that opinion.[37]
[37]Reasons (n 9) [17].

The member then set out the description of the proposal,[38] and dealt with what he identified as the key issue, being whether the proposal would have an unacceptable visual impact. The appellants’ case did not dispute that the subject site could accommodate some form of tourist accommodation,[39] praising the sites attributes as ‘an extraordinary opportunity to foster a high quality tourism facility that takes advantage of peerless views in a quiet rural setting.’ The Tribunal noted that the Planning Scheme’s zoning and the application of the DDO‑6 implied that built form of sorts would likely occur on the site.[40]
[38]Ibid [18]–[23].
[39]Ibid [24].
[40]Ibid [27].

The member considered the visual impact on the landscape both in the immediate and broader surrounds. He concluded that the proposal would not have an unacceptable visual impact.[41]
[41]Ibid [39], [43], [45], [48], [50], [62].

He then set out a section headed ‘Weight to be given to the Council’s Decision to Approve the Proposal under the DDO‑6’ and set out his comments as follows:[42]
[42]Ibid [56]–[58].

56 In accordance with the legal opinion attached to this decision, the existence of a grant of a permit under the DDO6 by the council is lawful and binding on this Tribunal. Further, that opinion sets out that I am not reviewing the decision of the council to grant a permit under the DDO6 when considering the application for review.
57However, that opinion also sets out that it is a matter for the decision maker in the review application as to the weight to be given to the council’s decision to grant a permit under the DDO6, as per paragraph 89 of the attached opinion:
89 The weight to be given to the grant of a permit under DDO6 in the Tribunal’s consideration of the ‘cover‑all’ permit is a matter for the Tribunal.

58In this case, as I have been persuaded that a permit should be granted under the RLZ and ESO3, the council’s decision to grant a permit under the DDO‑6 only adds weight to my determination to grant a permit.

After considering what permit conditions would be appropriate based on the submissions and evidence before him, the member concluded that:

62 The review site, and the proposal, are both dwarfed by the distraction of the rising Mt Sturgeon and towering Mt Abrupt, seemingly not coincidentally named so. The development will not be an unacceptable intrusion and nor will it dominate the surrounding landscape, particularly Mt Sturgeon and the surrounding Grampians ranges.
63 For the reasons given above, the decision of the responsible authority is varied. A permit is granted subject to conditions.

The permit conditions are set out as Appendix B to the Reasons. They identify the permit application TP/127/2020, and what the permit allows as:

In accordance with the endorsed plans:
The use and development of the land for Group Accommodation and associated works

As set out above at [38], condition 1 of the Council’s Notice of Decision provided that the ‘use/development as shown on the endorsed plans must not be altered without the written consent of the responsible authority’. Condition 1 of the Tribunal’s conditions provides for the endorsement of plans by the Council before development can commence, making reference to the amended plans submitted to the parties and the Tribunal on 21 October 2021:[43]

1 Before the use or development starts, amended plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be generally in accordance with the plans prepared by Edition Office, Revision D dated 21 October 2021 …
[43]Emphasis added.

The Tribunal’s Legal Opinion

As mentioned, the Legal Opinion was set out in Appendix A to the Reasons. The legal member commenced the Legal Opinion with a brief overview of the background and existing planning controls for the site, as well as setting out the two questions of law to be answered in the Opinion:[44]

1. Whether the Tribunal has jurisdiction to consider the application for review under Design and Development Overlay Schedule 6 of the Southern Grampians Planning Scheme having regard to the exemption from notice and appeal rights under that provision, and section 82(3) of the Planning and Environment Act 1987?
2. Is compliance with the built form requirement in the Design and Development Overlay Schedule 6 a relevant consideration for the Tribunal in reviewing Council’s decision to grant a permit for buildings and works pursuant to the Rural Living Zone and/or Environmental Significance Overlay Schedule 3?

[44]Legal Opinion (n 10) [5].

The legal member then set out the applicable legislation required to answer the two questions posed. Among other things, she set out the objectives of planning under s 4(2), the matters a planning scheme can provide for under s 6(2), the process for obtaining a permit for use and development of land under ss 47 and 52, and the appeal rights of objectors under s 82. She went on to observe that the planning framework established by the Planning Act:[45]

a. Contemplates that an applicant for a permit may lodge a single application for a permit for a use or development or for a combination of use(s) and development(s).
b. Provides for the giving of notice of permit applications to certain persons but also to those persons a responsible authority considers that the grant of the permit may be cause material detriment.
c. Provides for the receipt by the responsible authority of objections to a permit application from persons who may be affected by the grant of a permit, including but not limited to persons who received notice of the permit application under section 52 of the Act.
d.Does not require a responsible authority, when considering a permit application that is exempt from the notice requirements under section 52, to consider the objections and other submissions which it has received.
e. Does not require the giving of notice of a decision to grant a permit in the prescribed form to objectors where the planning scheme exempts a responsible authority from doing so under section 64(1). This is significant, because a notice in the prescribed form advises the recipient of that person’s rights to seek review of the decision of the responsible authority to which the notice relates.

[45]Legal Opinion (n 10) [25] (footnotes omitted).

The legal member then went on to consider the parties’ submissions on the two questions of law.

First question of law before the Tribunal

The parties were all of the view that the Tribunal did not have jurisdiction to review the Council’s decision to grant a permit pursuant to the DDO‑6 because there is no right of review in respect of that trigger under s 82.

In addition to this position, the appellants submitted that:[46]

b. To the extent that the Tribunal would consider any of the matters in DDO6, the Tribunal would consider them only as they would be considered relevant to any of the matters considered relevant under the RLZ, the ESO or both.
c. Taking this approach, the Tribunal is not considering a disaggregated or segregated permit; the Tribunal makes an integrated decision and issues one permit for the proposal.

[46]As summarised in the Legal Opinion (n 10) [27].

The Council submitted that:[47]

As an application for review under section 82 cannot be brought in respect of the permit required under DDO6, Council’s decision to grant a permit under DDO6 is not reviewable by the Tribunal. This is a decision favourable to the Permit Applicant and one that the Tribunal must accept as having been established. The effect of the Exemption is that the Tribunal is only vested with jurisdiction to consider Council’s decision to grant a permit under RLZ2 and the ESO3.

[47]Legal Opinion (n 10) [30].

Considering these submissions, the legal member’s answer to the first question was ‘no’. She noted that since the Tribunal is a creature of statute, it derives its jurisdiction entirely from statute,[48] and the Tribunal’s review jurisdiction is accordingly invoked under s 48:[49]

(a) by a person who is entitled to do so by or under an enabling enactment applying to the Tribunal in accordance with section 67 for review of a decision under that enactment; or
(b) by a decision‑maker referring a decision to the Tribunal under an enabling enactment in accordance with section 69 for review of the decision; or
(c) in any other way permitted or provided for by the enabling enactment.

[48]Legal Opinion (n 10) [32]–[33], citing Director of Housing v Sudi (2011) 33 VR 559, 564 [19] (‘Director of Housing v Sudi’).

[49]VCAT Act (n 7) s 48, as set out in the Legal Opinion, [36].

The legal member went on to consider the Court of Appeal’s decision in the Sweetvale Appeal, in which Warren CJ held that:[50]

The Tribunal, in exercising its review jurisdiction exercises the functions of the responsible authority as the decision maker. It follows that no right of review to the Tribunal lies where an exemption is imposed. Any review is limited to those parts of the application for the permit to which the appellants were able to object in accordance with the Act and the Scheme.

[50]Legal Opinion (n 10) [41], citing Sweetvale Appeal (n 13) [17].

In the legal member’s view, Warren CJ was considered to have provided a complete answer to the first question of law, as well as to the second question. The legal member then concluded that:

(a) The appellants’ entitlement to seek review is conferred under section 82(1) of the Planning Act.

(b) The consequent impact of clause 2.0 of the DDO‑6 is that the appellants had no right of review to the Tribunal in respect of clause 43.02‑2 of the Planning Scheme.

(c) As the Tribunal’s review jurisdiction can only be invoked pursuant to section 48 of the VCAT Act, it follows that the Tribunal does not have jurisdiction to consider the appellants’ application for review challenging the Council’s decision to grant a permit under clause 43.02‑2 of the Planning Scheme.

Second question of law before the Tribunal

The legal member also rejected the proposition that the Tribunal was required to independently consider whether the proposal complies with the requirements of the DDO‑6 to determine the application for review.

She commenced consideration of this question setting out the submissions of the parties. The parties made submissions which, while varied, appeared to agree that it was within the Tribunal’s power to ‘consider for itself whether or not the proposal complies with’ the DDO‑6, and ‘that consideration must be factored into the overall decision of the Tribunal’.[51] The parties’ positions on this proposition can be summarised as follows:
[51]Legal Opinion (n 10) [53].

(a) The appellants submitted that since the Tribunal is considering discrete permissions under each provision of a planning scheme, clauses 65 and 71.02‑3 of the Planning Scheme require the Council, and the Tribunal in its shoes on review, to make decisions in an integrated way. Further, whilst the provisions of the DDO‑6 do not have direct relevance to the permissions required under the Planning Scheme, the Tribunal must be positively satisfied that the proposal adequately responds to the provisions of the DDO‑6.[52]

(b) Dunkeld Property submitted that because the Tribunal’s role in an application for review is to consider the permit application de novo, the Tribunal reviews the original decision in light of the evidence before it and reaches the correct or preferable decision in light of that evidence.[53] Dunkeld Property submitted that the issues in a proceeding brought under s 82 of the Planning Act ‘will not necessarily be limited to those raised by the applicant for review’.[54] In light of the direction to the Tribunal contained in s 84B of the Planning Act, Dunkeld Property submitted that it ‘is therefore open to the Tribunal, in considering the permit application de novo, to take into account the planning scheme in its entirety’.[55]

(c) In addition to agreeing with the submissions of Dunkeld Property, the Council submitted that it had no issue with the Tribunal considering compliance with the DDO‑6 as part of the ‘integrated whole of the planning controls that apply’ to the site, and it is necessary to do so in order to assess the built form.[56]

[52]Ibid [46].

[53]Ibid [47].

[54]Ibid [48], referring to submissions relying on Derek Phang v City of Darebin & Ors [2001] VCAT 1350.

[55]Ibid [49].

[56]Ibid [51].

It was also observed that all the parties made submissions ‘through various expressions, that the Court of Appeal’s decision in 1045 Burke Road, has an impact on the way the Tribunal discharges its obligation to deliver integrated decision-making in its determination of this review application’.[57]
[57]Ibid [56].

Against the backdrop of these submissions, the legal member noted that responsible authorities, and the Tribunal in its review jurisdiction, are directed to endeavour to integrate the range of planning policies ‘relevant to the issues to be determined’, a directive that is balanced against conflicting objectives in favour of benefit to the community and sustainable development.[58] In circumstances where an application for review is brought under s 82(1) of the Planning Act, subsection (3) limits the issues to be determined to those which are subject to third party review.
[58]Ibid [59]–[60], referring to cl 71.02–3 of the Victorian Planning Provisions.

Next, the legal member turned to how integrated decision-making is reconciled with the above directive and balancing exercise. This was done by reference to the reasoning of Ashley J in Sweetvale, which was decided in the context of a s 82(1) review application, and the directive described above which was provided under clause 11 of the relevant planning scheme at the time:[59]

70 I must next refer to the applicants’ submission that if decisions on certain applications were quarantined against review it was likely that the review process would produce a distorted decision not reflecting all relevant planning considerations. In this connection counsel contended that the balancing exercise required by clause 11 of the Scheme would be prejudiced, if not rendered impossible.
71 I accept that, in consequence of the view I take as to the application of the exemptions, the ambit of permissible enquiry on review in a case such as the present would be confined. The Tribunal will be obliged to take certain matters as having been established. But that does not mean that remaining planning issues cannot be fully explored. It does not mean that in such exploration evidence will not be receivable which is pertinent to such issues because it would also be relevant to a matter which must be taken to be established. Finally, if and insofar as the view I take would have a tendency to produce a decision not reflecting all relevant planning considerations, that is what, in my opinion, is plainly dictated by the legislation.

[59]Ibid [62], referring to Sweetvale (n 15) [70]–[71].

To the legal member, Ashley J’s reference to the Tribunal being obliged to ‘take certain matters as having been established’ could only be a reference to a discrete decision of a responsible authority to grant a permit that is exempt from third party review.[60] Considering the matrix of planning controls in the present case, she considered that the Council’s decision to grant a permit under the DDO‑6 was a matter that the Tribunal must also take as ‘having been established’ for the purpose of the application for review before it.[61]
[60]Ibid [63].
[61]Ibid [64].

The legal member then arrived at the following conclusion:

65 What this means practically is that the Tribunal cannot, in reviewing Council’s decision to grant permits under other clauses of the scheme, undertake an independent consideration of whether or not the proposal complies with DDO6 and factor this determination in the review of the decisions properly subject of the review application.
66 The Tribunal must accept that there is in existence a grant of permit under DDO6, that is lawful and binding, when discharging its obligation to deliver integrated decision-making in this proceeding. This does not prevent the Tribunal in receiving and considering evidence that may be relevant to matters raised under DDO6 if, that evidence is relevant to the planning issues properly before the Tribunal in the review application.

The Legal Opinion then considered the extent to which the nature of the review as a hearing de novo changes the scope of matters the Tribunal is to take into account. The legal member rejected the reliance of the Tribunal’s comment in Phang,[62] that a review application represents a fresh assessment of the ‘permit application’,[63] observing that:

70 Unfortunately, the loose use of the description ‘de novo’ and the phrase ‘standing in the shoes of Council’ when considering the jurisdiction of the Tribunal on review can lead to outcomes that overlook the specific statutory provisions that confer the Tribunal’s review jurisdiction. Neither one of these phrases singularly, or together, confer jurisdiction on the Tribunal; nor are they in fact found in the Act or Victorian planning schemes.
71 In all the provisions relevant to the Tribunal’s review jurisdiction under the VCAT Act, the foci of those provisions are ‘the decision’ under review.

[62]Derek Phang v City of Darebin & Ors [2001] VCAT 1350.

[63]Legal Opinion (n 10) [70]–[71].

Accordingly, in answer to the second question, being whether the Tribunal is required to independently consider whether the proposal complies with the requirements of the DDO‑6 in its determination of the review application, the Tribunal answered – ‘No’.

The legal member concluded that because the Tribunal’s review jurisdiction is conferred ‘in respect of a decision’,[64] and s 82(1) of the Planning Act operates on the basis of a Notice of Decision being issued in relation to discrete decisions for which an applicant seeks review by the Tribunal, the proper interpretation of an application for review being ‘in respect of a decision’ is not interchangeable with ‘the permit application’. To do so would not confine the review within the jurisdiction conferred by s 51(1) of the VCAT Act. Therefore, the Tribunal does not have the jurisdiction to consider the permit application as a whole in an application for review of a decision raised under s 82(1) of the Planning Act.
[64]VCAT Act (n 7) s 51(1).

The legal member then set out the matters the Tribunal must take into account in an application for review under the Planning Act, as provided by s 84B,[65] noting that:

78 One does not need to look further than the opening words of section 84B(1) and (2) – “in determining an application for review under this Act” – to see that the direction to the Tribunal contained therein is confined by the nature and content of the application for review and the decision the subject of that application for review.
79 There is nothing in section 84B that requires the Tribunal to consider the whole of the planning scheme when determining an application for review. The provisions of a planning scheme required to be taken into account is dependent on the decision under review.[66]

[65]Set out at [33] above.

[66]Brunswick Investment (n 19) [69]–[71].

Returning to the parties’ submissions on the impact of 1045 Burke Road, at [81] the legal member set out the two questions answered by the Court of Appeal in that matter:

(a) first, whether, before the permit could be granted, the respondent (as the applicant for the permit) needed to satisfy or ‘tick’ every permit requirement that applied to the proposal;[67] and

(b) second, where there are multiple triggers for a planning permit for a proposal, may a permit be granted for that proposal only if there is a favourable decision or outcome (being the grant of a permit either with or without conditions) in respect of each permit trigger?[68]

She noted that the Court unanimously answered both questions affirmatively.

[67]1045 Burke Road (n 14) [54] (per Santamaria JA’s formulation of the substantial question as identified by Warren CJ).

[68]1045 Burke Road (n 14) [115] (Garde AJA).

The legal member then identified key aspects of the Court’s consideration of authorities, starting with the discussion by Warren CJ of the reasoning of Ashley J in Sweetvale, which she summarised as follows:[69]
[69]Legal Opinion (n 10) [83] (footnotes omitted).

a. The high point of Ashley’s decision in Sweetvale is that a decision to grant a permit represents –
…a discrete decision favourable to the applicant in respect of each of those building controls which required [the] grant of a permit.

b. Sweetvale stands for the proposition that –
…a single permit for an overall development proposal cannot be granted unless the responsible authority considers each permit requirement that applies to the proposal, and would grant a permit in relation to each such requirement. If the responsible authority is not satisfied that a demolition permit should be issued in the context of a proposal that would involve relevant demolition work, then it must not grant a global permit for that proposal.

c. In her view, it was not open to read the Act in such a way that individual permit requirements may become optional in the context of an overarching ‘Sweetvale‑type’ permit application.
d. (referring to the proposition extracted in paragraph (b) above) “The Sweetvale proposition is valid, but it must be understood in the context of the integrated decision‑making required under the Act.”
e. (describing how integrated decision-making occurs in a ‘Sweetvale‑type’ permit application) –
When an overarching permit application is made for an entire proposal or the required permits are applied for separately is a matter of form rather than substance. In either situation, the triggered permit requirements must each be considered by the responsible authority, in the context of the overall proposal. For a cover‑all proposal to be granted, the responsible authority must be satisfied that in the context of the overall proposal, a permit should be granted in respect of each permit requirement triggered by the proposal, and also the cover‑all permit which is sought to be granted.

By contrast, the legal member also set out the following critical excerpt from the reasons of Garde AJA, from which she observed that his Honour identified that the second question before the Court of Appeal was considered by Ashley J in Sweetvale:

I can and do accept some of the applicants’ submissions. But I do not accept their centrepiece, that is, that in determining the operation of exemptions the Tribunal was bound to treat the application for grant of a permit as being for all relevant purposes singular. In my opinion, correctly understood, although the application was singular in form, it embodied a series of applications with respect to particular building controls. That this was the fact of the matter could not be doubted. Further, although the decision to grant a permit was in singular form, it represented a discrete decision favourable to the applicant in respect of each of those building controls which required a grant of permit. That this was the fact of the matter again could not be doubted. It is true that in deciding to grant a permit it was necessary for the responsible authority to consider the matter overall, as well as or in the course of considering the individual permissions which the permit applicant had to obtain. But that does not mean that the applications made with respect to each of those controls did not have to be the subject of individual determination. Indeed, the decision guidelines, which varied from one control to the other, dictated that an individual determination did have to be made in the case of each control.[70]

[70]Sweetvale (n 15) [60].

Considering the ‘detailed consideration’ given by the Court of Appeal to Sweetvale, the legal member rejected the proposition that the decision in 1045 Burke Road directly or indirectly disagreed with Ashley J’s finding that in an application for review under s 82, ‘the ambit of permissible enquiry on review will be confined and that the Tribunal will be obliged to take certain matters as having been established’.[71] This, she observed, is entirely consistent with the exercise of the Tribunal’s review jurisdiction under s 51 of the VCAT Act, and s 82 of the Planning Act as the enabling provision.
[71]Legal Opinion (n 10) [85].

The legal member concluded that:

88 There is nothing irreconcilable with the approach to integrated decision-making described by the Court of Appeal in 1045 Burke Road and the opinion I have expressed above as to how the Tribunal should proceed to a determination in this review application.
89 On the facts of this matter, a ‘tick’ has been given by the responsible authority to all permissions required under the scheme for the proposal. Section 82(3) of the Act exempts from third party review Council’s decision to grant a permit under DDO6. The Tribunal does not have jurisdiction to review Council’s decision to grant a permit to the respondent under DDO6. The Tribunal in considering the proposal overall must take the grant of a permit under DDO6 as a ‘matter that has been established’. The weight to be given to the grant of a permit under DDO6 in the Tribunal’s consideration of the ‘cover‑all’ permit is a matter for the Tribunal.

Appellants’ Submissions on Appeal

The Court did not have the benefit of a contradictor in this matter.[72] The only submissions were those made on behalf of the appellants.
[72]Neither the Council nor the Dunkeld Property took an active role in the proceeding, filing letters in accordance with R v Australian Broadcasting Tribunal; Ex Parte Hardiman (1980) 144 CLR 13.

It is clear from examination of the submissions made to the Tribunal on the questions of law that all parties before the Tribunal were of the view that the Tribunal did not have jurisdiction to review the merits of the DDO‑6 decision. What was in issue was how the existing permission under the DDO‑6 was to be factored in, or considered in the determination of the application for review before the Tribunal, and whether the amended plans purported to impermissibly vary this permission.

To avoid doubt, the appellants clarified that they do not contend that they had a right to seek review of the Council’s decision under the DDO‑6. They acknowledge the effect of s 82(3) is that they did not have a right to apply for review of that decision, and if they had sought to do so, the Tribunal would properly have excluded those submissions.

I note that the appellants accepted this proposition and that they raised no objection to the amended plans at the time they were submitted in the review proceeding.

The appellants posed two questions of law:

(a) If the Tribunal was correct to find that it had no jurisdiction in respect of the DDO‑6, then it acted beyond power by purporting to make an order directing the issue of a permit including permission under the DDO‑6 on the basis of the amended plans.

(b) Alternatively, if the Tribunal was wrong to find that it had no jurisdiction in respect of the DDO‑6, then it misconceived its jurisdiction and erred by failing to consider compliance with DDO‑6.

The appellants’ submissions in support of these grounds will be considered in turn.

Question 1 – The Tribunal erred by making orders which had the effect of varying the Council’s omnibus decision

The ground of appeal advanced by the appellants in support of the first Question of Law was that the Tribunal erred by purporting to vary the decision of the responsible authority under DDO‑6 and to direct the issue of a permit for a use and development on the basis of amended plans not considered by the responsible authority.[73]
[73]Particulars of this ground of appeal were set out in the Amended Notice of Appeal.

As mentioned at [42] and [45], the Tribunal made orders substituting the plans under review with amended plans submitted by Dunkeld Property during the proceeding. The review then proceeded on the basis of the amended plans, with no objection from any party during the course of the hearing before the Tribunal, after which the review proceeded on the basis of the proposed amended plans.

The appellants’ argument assumes that the amendment of the plans varied the Council’s decision pursuant to the DDO‑6 because the amended plans were not the same plans that were before the Council when it made its decision. Further, the decision by the Tribunal to vary the conditions in the Notice of Decision to require changes to the original proposal’s plans was also tainted by the same excess of jurisdiction. The consequence, it was argued, was that the Tribunal’s decision was impermissible as it ventured into consideration of the permission granted under the DDO‑6.

This ground requires consideration of whether the Tribunal’s decision to permit use and development on the basis of the amended plans had, at law, the effect that the appellants allege.

The following preliminary observations should be made as to the scope of the Tribunal’s amendment power under clause 64:

(a) first, the Tribunal’s power to amend under this clause is wide.[74] It can make any amendment it sees fit to an application for a permit;

(b) second, an amendment can include altering an application to one which was not the same as it was before the Council. This includes a new or different use or development, and can alter the land affected;[75] and

(c) third, the intent of clause 64 is to give the Tribunal means to deal with the real proposal, and real matters in dispute, without being prevented from doing so by technical arguments.

[74]Roads Corporation v McCarthy [2004] VSC 369 [50]; Hoskin v Greater Bendigo Council (2015) 48 VR 715, [114].

[75]VCAT Act (n 7) s 64(3)(a)–(b). The Tribunal can give directions on further notice if required.

Against these observations, I now turn to the appellant’s submissions in support of the first ground of appeal.

Appellants’ submissions on First Question

The appellants’ submission was that the Tribunal either had jurisdiction to consider the whole application including the requirements of the DDO‑6, or it did not. If it had jurisdiction and refused to exercise it, they argued that it would be a clear error of law. If not, it did not have jurisdiction to vary the decision of the Council to grant a permit in the way that it purported to do so.

In relation to the substitution of plans, the appellants made a series of contentions summarised as follows:

(a) pursuant to s 51(1) of the VCAT Act, the Tribunal only has the power to vary a decision in respect of which it has jurisdiction to review, being the RLZ and ESO‑3;

(b) if the application for review is confined to review of the decision where review rights exist, the scope of the Tribunal to substitute the amended plans was necessarily confined to substituting plans for the purposes of the RLZ and ESO‑3;

(c) the Tribunal’s orders of 9 December 2021 substituted plans originally considered by the Council (and the subject of the application for review) with the amended plans; and

(d) the Tribunal then went on to make orders directing the issue of a permit for use and development in accordance with conditions without any recognition or qualification confining the effects of its orders, which did not expressly specify which decisions of the Council which were varied by the Tribunal.

By directing the issue of the permit based on the amended plans, the appellants contended that the Tribunal had ‘misconceived’ or misunderstood its jurisdiction by making orders they say it lacked jurisdiction to make.

They proffered that, ‘with the benefit of hindsight, the proper legal course’ for the proceeding would have initially required the Council to divide its determination into two stages:

(a) first, to issue a permit including conditions in respect of the DDO‑6 pursuant to s 63 of the Planning Act, which directs a responsible authority to issue a permit in the absence of objectors, or if notice is not required to be given to objectors;

(b) second, to issue a Notice of Decision including proposed conditions in respect of the RLZ and ESO‑3, pursuant to s 64 of the Planning Act.

Then, following this two‑stage determination, the appellants should then have sought review in respect of the RLZ and ESO‑3 decisions under the second stage, at which point the amended plans could be substituted and the review would proceed as confined to those decisions. If the Tribunal determined to grant the permits in these circumstances, Dunkeld Property could then apply to the Council to amend the plans under the DDO‑6 permit under s 72 of the Planning Act to substitute the amended plans.

The appellants conceded that such a process, while lawful and correct according to their submissions, could lead to ‘an undesirable fragmentation of the permit application process’, which would conflict with the principles of integrated decision‑making.

Consideration

A planning permit for a proposal may require only one permission, or it may require a number of permissions. On occasion, considerations relevant to an individual permission may well overlap with another. The factual circumstances of this matter demonstrate that overlap, as considerations of landscape value and visual impact were all relevant to the permission the Council’s decisions under the RLZ and ESO‑3, as well as the DDO‑6. The identification at the outset of relevant permit triggers, the considerations relevant to those triggers, and the provisions exempt from review is an important analytical and procedural step for the Tribunal. It sets out the framework for the relevant considerations not only in policy terms, but also in terms of the submissions and evidence properly before the Tribunal.

It is beyond doubt that the Tribunal did not have jurisdiction to consider a review of the Council’s decision under the DDO‑6. The fact that all permissions needed for use and development of the proposal overall were sought in the one ‘omnibus’ permit application does not alter this position at law. An application for review cannot be made pursuant to s 82(1) of the Planning Act in respect of the DDO‑6, because that control is exempted from third party appeal rights. Section 82(3) is explicit in this regard.

I am of the view that on proper analysis of what was before the Tribunal and the ambit of its jurisdiction, the Tribunal’s decision did not have the effect of varying the Council’s permission under the DDO‑6. As the Tribunal’s jurisdiction extends only to the reviewable permissions before it, it follows that the permit it directed to be issued can only be for the permissions under the RLZ and the ESO‑3. Permission was already granted for the proposal by the Council in respect of the DDO‑6, and this permission is not negated by the Tribunal’s decision.[76]
[76]Notice of Decision (n 30).

In amending the plans in the application before it, the Tribunal was also restricted to making amendments to the plans in respect of permissions which were before it, and not more than that. It was not open to it to amend the decision of the responsible authority made under the DDO‑6 by that amendment order.

The power for the Tribunal to make amendments to a permit application under review, in any way it sees fit, is consistent with its role to deal with disputes in a practical and efficient way. Rarely is a perfect application lodged without any margin to allow for amendment. Amendment allows an application to better meet relevant planning controls and policies, or to adjust for reasonable objections.

In any event, it is clear to me that the Tribunal had the necessary information before it to make an informed decision in respect of the plans, namely expert evidence and the submissions of the parties. It was also clear that the Tribunal was aware of the scope of its jurisdiction, and that it was not reviewing the merits of the Council’s decision in respect of the DDO‑6.

The Tribunal, in its exercise of discretion to amend plans in a review proceeding, ought to consider what procedural consequences flow from allowing the amendment. As a matter of general practice it does so, on occasion requiring further notice to be given in relevant circumstances.[77] As the Tribunal’s orders amending the plans only have force and effect to the extent of the application before it, one such consequence is a potential inconsistency between the plans upon which the Council made its decision under the DDO‑6, and the amended plans in relation to the RLZ and ESO‑3.
[77]VCAT, Practice Note PNPE9: Amendment of Planning Permit, Applications and Plans, 1 July 2023.

To the extent of any inconsistency between the amended plans the Tribunal refers to in Condition 1, and the plans the Council referred to in its Notice of Decision, this can be remedied in two possible ways before development could commence:

(a) first, by Dunkeld Property, as the permit applicant, seeking to amend the DDO‑6 permit plans under s 72 of the Planning Act; or

(b) second, by lodging plans in accordance with Condition 1 of the Council’s Notice of Decision which provides for amended plans to the satisfaction of the responsible authority.

Either course of action is not as streamlined as it might be, and not without some potential complexity. However, this circumstance is likely only to arise where there is a s 82 review in which exempt provisions arise as the Tribunal does not have jurisdiction to amend an existing (exempt) permission granted. This consequence can only be improved by legislative change. However, this is the consequence of the provisions of planning framework which allows for exemptions from various parts of the permit approval process.

I acknowledge the observation made by the appellants that with the benefit of hindsight, the ‘proper legal course’ of the proceeding would not have dealt with a Notice of Decision for the proposal as a whole, as set out at [97]–[99] above. This course would have made clear that the amended plans the Tribunal was dealing with were appropriately confined to the application before it.

This scenario, whilst fragmented, would be a legally valid course to follow. However, I am not persuaded that this is the only way in which multiple permissions within an omnibus permit application must be dealt with. As set out above, I do not consider the effect of the amended plans being considered in the context of a limited review had the jurisdictional deficiency argued by the appellants. I agree the course they suggest is one correct procedural course, but this is not the only pathway where the Tribunal’s review is understood as being confined to non‑exempt provisions.

Finally, the overarching submission of the appellants was to the effect that the Tribunal’s decision is inconsistent with the principles of integrated decision-making.

They argue that the Tribunal’s approach renders integrated decision‑making on review impossible, because it precludes consideration of aspects of a proposal for which an applicant for review is not entitled to seek review.

I disagree.

Where an application for review is brought involving exempt and non‑exempt permissions, not all of the planning provisions will necessarily be open to review by the Tribunal. As identified by Ashley J in Sweetvale, such an outcome is ‘plainly dictated by the legislation’.[78] It would not be possible to give effect to the clear intention of the legislature to exclude certain classes of permissions from third party review rights if the Tribunal’s jurisdiction could be enlivened or overridden by policy aspirations for integrated decision‑making.
[78]Sweetvale (n 15) [71].

In my view, the manner in which the Tribunal proceeded, given the limitation on the jurisdiction to reconsider the decision already made under the DDO‑6, was consistent with the principles of integrated decision-making.

The Tribunal’s approach to confining the exercise of its jurisdiction to the RLZ and ESO‑3 was correct, and did not exceed its jurisdiction. Properly understood, the application before it was limited to the review for permissions for which it had jurisdiction, and no more. Insofar as there is any ambiguity in the orders made in the Tribunal’s decision, the Reasons and orders must be read as confined to the ambit of the review that was before it. It was clear in the Legal Opinion, and the Reasons in respect of merits, that the review was limited to those provisions. The amendment of the plans must also be confined to the application ambit before it. This conclusion is not contrary to the principle of integrated decision-making when it is acknowledged that under the Planning Act and Planning Scheme, the Tribunal has no jurisdiction to review exempt provisions.

The question of if, or how, the DDO‑6 ought to be taken into consideration (as opposed to reviewed) is dealt with in the second ground.

It follows that the first ground of appeal is not made out.

Question of Law 2 – The Tribunal erred in finding it was not required or permitted to consider whether the application for review complied with the requirements of the DDO‑6

The appellants posed this Question of Law as an alternative proposition. The grounds relied on in support of this question of law were:

(a) The Tribunal relied on Sweetvale to find the Tribunal was not required or permitted to independently consider whether the application under review complied with the requirements of DDO‑6.

(b) The principle of integrated decision-making as explained in 1045 Burke Road requires the responsible authority:

(i) in deciding to grant a permit overall for a development to make an overall decision as well as individual decisions in respect of each permit trigger; and

(ii) in doing so, consider all of the factors relevant to those decisions in a holistic and integrated fashion.

(c) Section 84B of the Planning Act in its current form, inserted in 2004, requires the Tribunal to consider all matters properly considered by the responsible authority in making its decision to grant a permit.

(d) On a proper construction of the Planning Act as interpreted by the Court of Appeal, the Tribunal was required to independently satisfy itself that a permit should be granted under DDO‑6.

Appellants’ submissions on Second Question

The appellants contend that it was the position of all of the parties before the Tribunal that in conducting a review of the decision under the RLZ and ESO‑3, the Tribunal was required to consider compliance with the DDO‑6 in order to determine the review application overall. They argue that whilst they and Dunkeld Property expressly referred to the emphasis on integrated decision‑making in 1045 Burke Road in support of their submissions, the Tribunal rejected these arguments in favour of simply accepting that a permit would be granted under the DDO‑6 and that the weight to be given to this fact was a matter for the Tribunal, notwithstanding their contention that the plans in respect of this control had been varied by the amended plans.

The appellants argue that the Tribunal’s approach directly conflicts with the principle of integrated decision‑making underpinning the Court of Appeal’s decision in 1045 Burke Road, which they say makes clear that ‘the assessment of any single permit application takes place within the context of the whole application’, including other permissions.

The appellants argued that the Tribunal’s reasoning depended critically on its view that the word “decision” as used in the Planning Act and the VCAT Act referred to the individual decisions on each component application and implicitly, on the assumption that these decisions could be segregated from one another in a way that assessment of the appropriateness of any particular application could be entirely segregated from the merits of the assessment of any other application for the application as a whole. It was said that this approach directly conflicts with the principles that underpin the decision in 1045 Burke Road.

It was argued that all the members of the Court of Appeal recognised the principle of integrated decision‑making required consideration of the proposal in its entirety and that this required consideration of all permit triggers in the context of the proposal as a whole. Reference was made variously to extracts from the judgements of Warren CJ,[79] Santamaria JA,[80] and Garde AJA.[81] It was argued that the court’s reasoning makes it clear that the assessment of any single permit application takes place within the context of the whole application including the other matters for which permission is sought. It was suggested that the alternative approach (of dealing with the proposal as a series of separate permits made under separate controls) would lead to impractical, unacceptable or contradictory permit outcomes. This approach would not facilitate a “cover-all” or overall decision to be made, an element which was a ‘critical element’ of orderly and proper planning.
[79]1045 Burke Road (n 14) per Warren CJ at [36], [37], [48].
[80]Ibid [57] (Santamaria JA).
[81]Ibid [149] (Garde AJA).

The appellants submitted that the approach adopted by the Tribunal rendered integrated decision‑making on review impossible because it precluded any consideration of those aspects of the proposal in respect of which the review applicant is not entitled to seek review. This approach was urged to be rejected as being directly inconsistent with the judgements of Warren CJ and Santamaria JA in 1045 Burke Road. It was said that the principle of integrated decision-making not only permitted but obliged the Tribunal to consider matters arising under DDO‑6.

Further, it was argued this view is supported by reference to ss 60 and 84B of the Planning Act which identify the matters to be considered by the responsible authority and the Tribunal respectively in making decisions under the Planning Act. It was argued that it was significant that Parliament enacted both ss 84B(1) and (2) with different spheres of operation. There were matters under ss 84B(1) and (2) which were required to be ‘taken into account’, and matters to which the Tribunal must ‘have regard’. It was argued that the requirement to consider matters which the responsible authority was required to consider, or did properly consider, is significant because the responsible authority in making its decision was required to take into account the full range of considerations in making an integrated decision. In addition, s 84B(2)(a) required the Tribunal to take into account the relevant planning scheme thus requiring the whole of the scheme, including DDO‑6, to be taken into account.

In circumstances where the responsible authority was required to consider matters under the DDO‑6, it was submitted that the effect of s 84B was to require the Tribunal to consider the matters arising under DDO‑6 as part of its decision. It was said to be consistent with the decision in 1045 Burke Road where each of the judges recognised the role of s 84B in facilitating integrated decision-making.[82]
[82]1045 Burke Road (n 14) per Warren CJ at [30]; Santamaria JA at[57]; Garde AJA at [84]–[86].

The appellants argued that the decision of the Court of Appeal in 1045 Burke Road should be seen as qualifying the proposition adopted in Sweetvale regarding the extent to which a permit application can or should be disaggregated.[83]
[83]Appellants, ‘Outline of Submissions’, submission in Myers v Southern Grampians Shire Council, S ECI 2022 02815, 18 December 2022, [57].

The appellants criticised the reasoning of the Tribunal, categorising the Tribunal’s reasons as dismissing any argument based on s 84B by emphasising the phrase ‘in determining an application for review under this Act’.[84] It was said that in doing so it failed to engage with the different nature of the obligation imposed by s 84B(1) as opposed to s 84B(2).
[84]Reasons (n 9) [19].

Further, it was argued that the Court in Sweetvale did not refer to s 84B of the Planning Act in its decision. Rather, it was said that the Court appears to have simply assumed that the effect of the decision was to remove certain matters for consideration by the Tribunal. It was noted that the current form of s 84B(1) was substituted into the Planning Act in 2004 after Sweetvale was decided. While it bears some resemblance to s 84B(2) as it existed at the time of Sweetvale, it was said that this demonstrated Parliament’s intention to regard s 84B(2) as insufficient and removed it and replace it with the new s 84B(1).

Consideration

I agree with the legal analysis expressed by the Tribunal and with the application of it by the Tribunal member in the merits decision. I reject the appellants’ analysis and its interpretation of the effect of the Court of Appeal’s decision in 1045 Burke Road. The analysis of the Tribunal’s jurisdiction in this type of application for review and the approach taken to what was a relevant consideration under the Planning Act in the context of a restricted right to review demonstrates no legal error.

The appellants’ submission that it was the position of all parties that the Tribunal was required to consider compliance with the DDO‑6 in order to determine the review application overall is noted. The approach submitted by the parties was not entirely consistent. In any event, the Tribunal, in determining an application, is not bound by the submissions of the parties when determining a question of law or the submissions by the parties.[85]
[85]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 [13] (Brennan CJ).

When the appellants’ argument is carefully analysed, what they are asking the Tribunal to do is to reopen the DDO‑6 decision and decide for itself whether there is compliance with DDO‑6. That is impermissible as the Tribunal does not have jurisdiction in a review brought pursuant to s 82 of the Planning Act where s 82(3) applies. The appellants ignore the jurisdictional ambit and its effect on the exercise of the discretionary task. The Tribunal did not fail to take into account the matters required under s 84B of the Planning Act in making its assessment of the review that was before it. The ‘decision’ under review before the Tribunal is not the same decision as that before the responsible authority. There are two permission decisions made under the ESO‑3 and the RLZ which are the reviewable decisions. The responsible authority had also to consider[86] to the permission under the DDO‑6. The reviewable decision under the Planning Act before the Tribunal is not the decision on the permit application as a whole. Not every decision made by the responsible authority is reviewable by the Tribunal. The ambit of the appeal is limited by the enabling enactment. The language of the legislation is clear in that regard.
[86]I use the word ‘consider’ as a convenience to draw together the s 84B terms ‘take account of’ and ‘have regard to’ as used in s 84B(1) and (2).

The Tribunal’s task on its review was to review the ESO‑3 and the RLZ permissions. In that task, s 84B required it to consider the range of matters including the matters properly considered by the relevant authority in its decision (by respectively ‘have regard’ to and ‘take account’ certain matters under s 84B). That is not the same task as that which the responsible authority was required to do, nor does it require a reopening of the merits of the DDO‑6 decision. It does however require the Tribunal to consider the DDO‑6 decision. This analysis is set out in the Tribunal’s Legal Opinion[87] and is applied by the Tribunal member in his merits decision. It is not a matter for the Tribunal on review to substitute its own view of the merits of the DDO‑6 decision. As the Tribunal remarked, that decision is a given.
[87]Legal Opinion (n 10) [78]–[79].

I have reviewed the form of s 84B prior to 2004 and in its current form. I do not consider, on its proper interpretation, that the formulation of s 84B now requires a different approach such that ss 84B(1) and (2) should be read to allow a reopening of the DDO‑6 decision. What is required by s 84B is consideration of the DDO-6 decision in the Tribunal’s decision on the permissions before it on review. It cannot be read in such a manner that it would permit reopening of a decision that just was not before the Tribunal on review.

I do not accept that the principle of integrated decision-making is to be applied in the manner suggested by the appellants. The aspiration for integrated decision-making is clear from clauses 65 and 71.02 and the objectives of the Planning Act.[88] That planning and responsible authorities ‘should endeavour to integrate the range of planning policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development’[89] is clearly stated in clause 71.02. However, the application of that policy will be necessarily different where there are exempt provisions in play and the application for review is brought pursuant to s 82 of the Planning Act.
[88]Planning Act (n 24) s 4.
[89]Planning Scheme, cl 71.02–3.

The appellants’ argument in this regard ignores the nuance that the exercise of discretion requires where there is a jurisdictional limitation such as in a s 82 review where an exempt provision is in play. This jurisdictional scenario is not that which was before the Court in 1045 Burke Road.

1045 Burke Road was concerned with the sequencing of decision-making and the considerations relevant for each of the decisions to be made in respect of multiple permit triggers. The approval for the proposal overall was considered in the context of conflicting policy objectives where all permissions were live issues and there was no exempt provision in play. Each decision required a positive decision or ‘tick’ taking into account all relevant policy considerations relevant to that decision and a harmonisation assessment before permission for the proposal overall could proceed. The order or sequencing of the decisions was not key. The role of integrated decision-making addresses policy conflict, which was brought into stark relief by the heritage permit triggers relevant in 1045 Burke Road. The Court of Appeal found that it was necessary to make a decision on each permit trigger taking into account all relevant considerations in respect of each decision, the sequencing of each decision was not defined, and in granting a permit for a proposal the responsible authority had to consider the proposal overall as well as the individual permissions required.

Garde AJA said that what was said in Sweetvale could be conveniently restated as:

(a) where for a proposal there is a requirement for the issue of multiple permits, a single application seeking all of the required permits may be made to the responsible authority;

(b) for a permit to be issued, it is necessary that the decision‑maker is satisfied that a permit should issue under each control that relates to the proposal whether with or without conditions;

(c) whether the decision‑maker is of the view that no permit should issue under one or more applicable controls, the proposal cannot proceed; and

(d) whether the decision‑maker is satisfied that all required permits should be granted, the decision‑maker will still need to consider the proposal overall, for the purpose of ensuring that the permit, permit conditions and endorsed plan satisfactorily define and describe the proposal that the decision‑maker intends to authorise to proceed.

At [150] Garde AJA said that in principle it makes no difference whether a single application is made for the multiple permits required for a proposal under the controls contained in the planning scheme, or whether the multiple applications are made for individual permits under the same controls. In each case, all necessary permits must be obtained with or without conditions before the proposal can proceed. If one or more permits cannot be obtained, the proposal cannot proceed.

In Sweetvale Ashley J was dealing with the decision-making considerations relevant where there was an exempt provision in place. The approach taken to relevant considerations in Sweetvale was not criticised in 1045 Burke Road.[90] 1045 Burke Road was not considering a planning permission decision matrix where exempt provisions were in play.
[90]1045 Burke Road (n 14) per Warren CJ [18]–[19],[29]; per Garde AJA [104].

In 1045 Burke Road the context was different. The planning controls in place in 1045 Burke Road involved a demolition permit trigger as well as development controls. There were no exempt provisions under consideration. The Tribunal in that scenario had all permissions before it and was in the same position in terms of all permit triggers and thus all policy considerations as the responsible authority had been at first instance.

The first question posed for the Court in 1045 Burke Road was whether where a planning permit was required to demolish buildings only by reason of the heritage overlay that discretion should have been exercised first and only by reference to considerations relating to heritage conservation policy. The Court of Appeal answered ‘No’. While the demolition permit was only required by virtue of a heritage control, the relevant considerations to be taken into account were not confined to heritage considerations. This was apparent from ss 4, 60 and 84B of the Planning Act and the consideration of the relevant provisions of the planning scheme, including clause 65.

The Court considered whether an overarching permit application was made for an entire proposal or the required permits were applied for separately was a matter of form rather than substance. In such cases the sequence of order in which each permit was considered was of no consequence under the Planning Act. Where a proposal required multiple permits under the scheme, the permit might be granted for the whole proposal only where there was a decision in the context of the overall proposal to grant a permit, with or without conditions under each applicable control.[91]
[91]Ibid [35]–[36], [38], [50], [52], [56]–[58], [60], [148]–[154], [162].

Where there was a decision favouring the grant of a permit under each control, the permit should be considered overall to ensure that the proposed conditions for the entire proposal were coherent, consistent and integrated, prior to granting the permit.[92]
[92]Ibid [35]–[36], [50], [52], [75], [149].

Warren CJ and Santamaria JA provided further observations about integrated decision‑making under the Planning Act.[93]
[93]Ibid [25]–[50], [57], [58].

What is critical in this analysis is the distinction between the applications for review which were before the respective Tribunals (and subsequently the Courts) in the Sweetvale and the 1045 Burke Road decisions. The questions before the Court in 1045 Burke Road did not directly raise the question of the exercise of discretion where one of the permit triggers was subject to third‑party exemption in a s 82 objector’s appeal.

In 1045 Burke Road the question was of sequencing of the exercise of separate permit triggers. The observations about integrated decision‑making must be seen in that context. All permissions were live questions to be determined by the Tribunal, as they previously had been before the responsible authority. The review exercise in those circumstances, i.e. the review ‘under this Act’, required consideration of the individual permissions (each requiring consideration of the relevant considerations under s 84B including relevant planning policies), as well as consideration overall. None of the permit triggers before the Tribunal in that case included permissions that were subject to exemptions from review under the Planning Act.

As the Tribunal states in its Legal Opinion at [85], the detailed consideration given by the Court of Appeal in 1045 Burke Road to the decision of Ashley J in Sweetvale and to the concept of ‘integrated decision-making’ does not provide any basis to conclude that the decision of the Court of Appeal in 1045 Burke Road directly, or indirectly, disagreed with Ashley J’s finding that in a s 82 application the ambit of permissible enquiry on review will be confined and the Tribunal will be obliged to take certain matters as having been established.

I also agree that this position is consistent with the exercise of the Tribunal’s review jurisdiction under s 51 of the VCAT Act and the enabling provision of s 82 of the Planning Act.[94]
[94]Legal Opinion (n 10) [86].

How then is the principle of integrated decision-making to be done by the Tribunal in this review where the application triggers more than one permission and at least one of them is exempt from third party participation?

The position of the appellants was that the Tribunal had to consider for itself whether the proposal complied with DDO‑6.[95] The Tribunal’s analysis was that the Tribunal was not required to independently consider whether the proposal complies with DDO‑6 in its determination of the review application before it.
[95]Ibid [53].

I agree with the analysis set out in the Legal Opinion of the Tribunal and the application of the approach by the Tribunal in its merits decision. The Tribunal did not misconceive its jurisdiction nor err by failing to consider compliance with DDO‑6. The consideration of ‘compliance with DDO‑6’ was not ignored.

What this means in practical terms is that the Tribunal must accept there is a permission in respect of the DDO‑6. This does not prevent the Tribunal receiving and considering evidence that may have been also relevant to matters raised under DDO‑6, if that evidence is relevant to issues properly before the Tribunal in the review application. Given the planning controls and polices relevant to this proposal, there was inevitably some overlap, in particular in regard to the landscape and visual impacts of the proposal.

This was exactly what the Tribunal did do. It heard evidence from two expert witnesses whose evidence traversed all of the planning controls and policies. Correctly, it did not revisit the merits of the DDO‑6 and in its final determination took into account the DDO‑6 permission. The weight it afforded the DDO‑6 permissions was properly a matter for the Tribunal.

Nor in its analysis did the Tribunal misconstrue or misapply s 84B. Section 84B must be read in the context of permit triggers which are properly before the Tribunal, rather than matters that are not.[96] The application for review under the Planning Act was confined to the two non‑exempt permit triggers. An application for review is not the same as the application for permit. It is in this context that all of the matters set out in s 84B must be relevantly taken into account. The Tribunal cannot independently review the DDO‑6 decision but it is relevant to consider the responsible authority’s decision in respect of DDO‑6 in its determination of the review before it. It is a matter for the Tribunal as to what weight to give to the decision of the responsible authority in determining the review before it.
[96]Brunswick Investment (n 19), [69]–[71], [79]–[81], [119]. See also Viva Energy Australia Pty Ltd v City of Greater Geelong & Anor [2023] VSC 586 per Forbes J.

The Tribunal was correct to draw the distinction between the application overall and the permissions which were before it by reason of the review jurisdiction it was exercising. The decision of the Tribunal to vary the decision of the responsible authority and grant a permit subject to conditions was a decision on the reviews before it, not on the permit application overall. The DDO‑6 permission was not before it and that decision of the responsible authority was not within the Tribunal’s jurisdiction to vary in the proceeding.

I do not consider this approach to be inconsistent with the entreaty in clause 71 to endeavour to integrate the range of planning policies relevant to the issues to be determined and the interpretation of the principle of integrated decision-making as explained in 1045 Burke Road. There is a jurisdictional limitation on the Tribunal’s exercise of discretion in this type of review which cannot be overcome by application of a policy.

I do not read the Tribunal’s decision as considering the permit granted as including the permission under the DDO‑6. As earlier noted, the permit for the proposal insofar as the DDO‑6 permission is concerned is a matter for the responsible authority and any changes to the plans to be endorsed under that permission is a matter for the application and the responsible authority.

In my view, the aspiration for integrated decision-making does not permit the reopening and assessment of the merits of the decision made by the responsible authority on the DDO‑6 permission. The fact that there is an existing approval by the Council under the DDO‑6 is ‘a given’. It forms part of the context of the decision to be made on permissions that are ‘live’ decisions before the Tribunal.

I am not persuaded that the effect of the decision in 1045 Burke Road is as doctrinaire as the appellants suggest in its application and that its effect is to require the Tribunal on a review under the Planning Act to re‑open and reconsider afresh an exempt provision under the guise of integrated decision-making.

Section 84B in its current form

The terms of s 84B(1)(a) in its current form requires the Tribunal in determining an application for review under the VCAT Act to take into account all matters properly considered by the responsible authority in making its decision, or was required to take into account in making its decision.

In my view this means that:

(a) All matters that the responsible authority took or was required to take into account in its decision(s) to grant the permission(s) now before the Tribunal on review are required to be taken into account by the Tribunal.

(b) This does not include DDO‑6 as that permission decision is not before the Tribunal as a decision on review under the VCAT Act.

(c) As DDO‑6 is not a decision under review under the VCAT Act the Tribunal is not entitled to reopen consideration of that decision.

The terms of s 84B(1)(b) requires the Tribunal to ‘have regard to’ any matter the responsible authority properly had regard to in making its decision or was required to take it into account in making its decision under review. One of those matters was the DDO‑6 permission and the responsible authority in determining the permissions it had before it needed to make a decision in respect of each of those permissions, which it clearly did in determining to grant permission for the proposal overall. This was part of the integrated decision the responsible authority made.

In my view this requires the Tribunal to ‘have regard to’ the decision of the responsible authority to grant the permission under the DDO‑6 and its decision overall to grant all permissions as it did in its Notice of Decision. This approach is consistent with the obligation to harmonise or integrate the various permissions which were sought for the proposal overall. This does not require a re‑examination of the merits of DDO‑6 by the Tribunal on review.

The terms of s 84B(2), in determining an application for review under this Act (i.e. not a review of the DDO‑6 permission), the Tribunal is also required to take into account the relevant planning scheme and the objectives of planning in Victoria.

Whilst the objectives of planning in Victoria as set out s 4 of the Planning Act include to provide for a single authority to issue permits for land use and development,[97] the role of the Tribunal is not to issue permits but to review decisions and direct the responsible authority to issue permits consistent with the Tribunal’s decision on review.
[97]Planning Act (n 24) s 4(f).

In taking into account the relevant planning scheme, that cannot be interpreted in the context of the review before the Tribunal, as requiring a re‑examination of the DDO‑6 permission.

In my view, the Tribunal does not have the dispositive power to direct a permit on all permit triggers where it otherwise has no jurisdiction to consider certain exempt permit triggers due to the nature of the review right being exercised by a third party. That is not the effect of the legislation as drafted. In this review, the correct disposition is to direct the issue of the permissions under the RLZ and the ESO and it is a matter for the responsible authority, the entity with jurisdiction over the decision under the DDO‑6, to issue a permit for the DDO‑6 permission. If there is any inconsistency between the two sets of permissions there is ample jurisdiction in the responsible authority under the terms of Condition 1 of the Notice of Decision or via the use of s 72 of the Planning Act to harmonise any inconsistency.

The Planning Act and the VCAT Act must be read together. There is a jurisdictional limitation in s 82(3) situations where there are exempt provisions applicable. If the Tribunal is to be fully in the shoes of the responsible authority, the Planning Act requires clarification so that the Tribunal may direct the responsible authority to issue a permit for all permit triggers as a result of its review. That is not the effect of the current legislative provisions.

Effect of the Tribunal’s Order

This leaves for consideration the effect of the Tribunal’s order and whether it can properly be interpreted as requiring the responsible authority to issue a permit overall, that is for all permissions required for the proposal, including the DDO‑6 permission.

In my view, what follows from the above analysis is that it does not. The Tribunal’s powers on disposition are set out in s 85 of the Planning Act and s 51(2) of the VCAT Act. The Tribunal’s orders[98] were couched in terms of the application for review P789/2021. As the application for review is jurisdictionally limited to the decisions in respect of the ESO and the RLZ, direction to issue a permit in accordance with the endorsed plans and proposed conditions can only have force in respect of those parts of the proposal overall. As set out at [168] above, if there is any material difference or inconsistency between the plans supported by the Tribunal and the conditions, it is a matter for the applicant for permit and the responsible authority to harmonise, if necessary, by endorsing plans in accordance with Condition 1 of the decision made by the responsible authority or by making a s 72 application to bring all of the permissions into conformity. This application would only be required if there was any material difference that could not be accommodated by endorsement of amended plans in respect of the DDO‑6 permission, which is a matter of opinion on which the Court will not proffer a view and which is properly a matter for the responsible authority to be satisfied.
[98]Orders of Member Templar in Myers v Southern Grampians Shire Council (VCAT, P789/2021), 24 June 2022).

Conclusion

As previously stated at [20], I grant the appellants leave to appeal the decision of the Tribunal.

However, for the reasons set out above, the appeal will be dismissed.

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[2023] VSC 658

16 November 2023